Citation Nr: 0301901
Decision Date: 01/30/03 Archive Date: 02/07/03
DOCKET NO. 02-07 130 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
Whether new and material evidence has been received to reopen
a claim seeking service connection for a low back disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
D. Dean, Counsel
INTRODUCTION
The appellant had active service from August 1982 to October
1986.
This matter comes before the Board of Veterans' Appeals
(Board) from a rating determination by the Pittsburgh,
Pennsylvania, Regional Office (RO) of the Department of
Veterans Affairs (VA).
Reopening of the veteran's claim for service connection for a
low back disability is granted in this decision. The Board
will undertake additional development on the veteran's
reopened claim for service connection for a low back
disability pursuant to authority granted 38 C.F.R. §
19.9(a)(2) (2002). When it is completed, the Board will
provide any notice of the development required by 38 C.F.R. §
20.903 (2002). After giving the notice and reviewing any
response to the notice, the Board will prepare a separate
decision addressing the reopened claim.
FINDINGS OF FACT
1. All evidence and information necessary for an equitable
disposition of the issue decided herein have been obtained.
2. The appellant's initial claim seeking service connection
for a low back disability was denied by final rating action
dated in February 1987.
3. An attempt to reopen the claim seeking service connection
for a low back disability was denied by final rating action
dated in April 1999.
4. The evidence received since the April 1999 decision
includes evidence which is not cumulative or redundant of the
evidence previously of record and which is so significant
that it must be considered in order to fairly decide the
merits of the claim.
CONCLUSION OF LAW
New and material evidence has been received to reopen the
claim seeking service connection for a low back disability.
38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Veterans Claims Assistance Act of 2000
Initially, the Board notes that during the pendency of this
appeal, the Veterans Claims Assistance Act of 2000 (VCAA),
Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into
law. In addition, regulations implementing the VCAA
(codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West Supp. 2002)), were published at 66 Fed. Reg.
45,620, 45,630-32 (August 29, 2001)(codified at 38 C.F.R. §§
3.102, 3.156(a), 3.159 and 3.326 (2002)). The Board will
assume, for the purposes of this decision, that the
liberalizing provisions of the VCAA are applicable to the
present appeal.
The Act essentially eliminates the requirement that a
claimant submit evidence of a well-grounded claim, and
provides that VA will assist a claimant in obtaining evidence
necessary to substantiate a claim but is not required to
provide assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. It also requires VA to notify the claimant and
the claimant's representative, if any, of any information,
and any medical or lay evidence, not previously provided to
the Secretary that is necessary to substantiate the claim.
As part of the notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant.
Nothing in the Act shall be construed to require the
Secretary to reopen a claim that has been disallowed except
when new and material evidence is presented or secured, as
described in 38 U.S.C.A. § 5108. 38 U.S.C. § 5103A(f).
VA has amended its regulations to establish clear guidelines
consistent with the intent of Congress regarding the timing
and the scope of assistance VA will provide to a claimant who
files a substantially complete application for VA benefits or
who attempts to reopen a previously denied claim. 66 Fed.
Reg. 45,620, 45,630-32 (August 29, 2001) (codified at 38
C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2002).
The rule is effective November 9, 2000, except the amendment
to 38 C.F.R. § 3.156(a), which is effective August 29, 2001.
66 Fed. Reg. 45,620, 45, 629.
Except for the amendment to 38 C.F.R. § 3.156(a), the second
sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. §
3.159(c)(4)(iii), the provisions of the rule merely implement
the VCAA and do not provide any rights other than those
provided by the VCAA. The provisions implementing the VCAA
are applicable to any claim for benefits received by VA on or
after November 9, 2000, as well as to any claim filed before
that date but not decided by VA as of that date. 66 Fed.
Reg. 45,620, 45,629.
The amended definition of new and material evidence, codified
at 38 C.F.R. § 3.156(a), is not liberalizing. It applies to
any claim to reopen a finally decided claim received on or
after August 29, 2001. 66 Fed. Reg. 45,620, 45,629. It does
not apply to the appellant's claim to reopen, which was
received shortly before that date.
The second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. §
3.159(c)(4)(iii), which relate to the assistance VA will
provide to a claimant trying to reopen a finally decided
claim, provide rights in addition to those provided by the
VCAA. The authority to provide such additional assistance is
provided by 38 U.S.C. § 5103A(g), which provides that nothing
in § 5103A shall be construed to preclude VA from providing
such other assistance to a claimant in substantiating a claim
as VA considers appropriate. Because VA has no authority to
make these provisions retroactively effective, they are
applicable to any claim to reopen a finally decided claim
received on or after the date of the rule's final
publication, August 29, 2001. 66 Fed. Reg. 45,620, 45,629.
They are not applicable to the appellant's claim to reopen,
which was received shortly before that date.
As explained below, the Board has found the evidence and
information currently of record to be sufficient to
substantiate the appellant's claim to reopen. Accordingly,
no additional development with respect to this matter is
required to comply with the VCAA or the implementing
regulations.
II. Analysis
The appellant's initial claim seeking service connection for
a low back disability was denied by a final rating action
dated in February 1987 on the basis that the evidence of
record at that time failed to establish the existence of a
chronic low back disability either in service or afterward.
Generally, a claim which has been denied in an unappealed RO
decision or an unappealed Board decision may not thereafter
be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c)
(West 1991). The exception to this rule is 38 U.S.C.A. §
5108, which provides that if new and material evidence is
presented or secured with respect to a claim which has been
disallowed, the Secretary shall reopen the claim and review
the former disposition of the claim.
New and material evidence is defined as evidence not
previously submitted to agency decisionmakers which bears
directly and substantially upon the specific matter under
consideration; which is neither cumulative nor redundant; and
which, by itself or in connection with evidence previously
assembled, is so significant that it must be considered in
order to fairly decide the merits of the claim.
38 C.F.R. § 3.156(a).
In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the
Federal Circuit noted that new evidence could be sufficient
to reopen a claim if it could contribute to a more complete
picture of the circumstances surrounding the origin of a
veteran's injury or disability, even where it would not be
enough to convince the Board to grant a claim.
For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight, is to be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992). In Kutscherousky v.
West, 12 Vet. App. 369 (1999) the U. S. Court of Appeals for
Veterans Claims (Court) held that the prior holdings in
Justus and Evans that the credibility of the evidence is to
be presumed was not altered by the Federal Circuit decision
in Hodge.
Another final rating action dated in April 1999 denied an
attempt by the appellant to reopen the claim seeking service
connection for a low back disability. New evidence received
at that time merely documented treatments for myofascial
syndrome.
In May 2001, the appellant again sought to reopen the claim
seeking service connection for low back disability.
The evidence which must be considered in determining whether
there is a basis for reopening the claim is that evidence
added to the record since the last disposition in which the
claim was finally disallowed on any basis. See Evans v.
Brown, 9 Vet. App. 273 (1996).
The evidence received since the last final rating decision
reflects for the first time the existence of chronic low back
disorders, including arthritis of the lumbosacral spine and a
herniated lumbar disc. In the Board's opinion, this new
evidence is so significant that it must be considered in
order to fairly decide the merits of the claim. Accordingly,
the claim will be reopened based upon this new and material
evidence.
ORDER
The Board having determined that new and material evidence
has been received, reopening of the claim seeking service
connection for a low back disability is granted.
Shane A. Durkin
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.